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2002 DIGILAW 48 (CAL)

Subal Chandra Roy v. State of West Bengal

2002-01-29

Pradip Kumar Biswas

body2002
JUDGMENT Pradip Kumar Biswas, J.: Heard the learned counsel for the petitioner at length as also the learned counsel for the State. This is an application under sections 401 and 482 of the Code of Criminal Procedure filed by the petitioner, Subal Chandra Roy, against the opposite party State of West Bengal seeking to set aside the impugned order dated 10th January, 1995 passed by the learned Sessions Judge, Cooch Behar, in Criminal Appeal No.4 of 1994 and/or to pass such other or further orders as may be deemed fit and proper. The facts leading to the present revisional application may be summarised as follows:- Upon a petition of complaint lodged by one Taleb Mia, Kotwali Police Station Case No. 25 of 1989 was started under sections 279 and 304A of the Indian Penal Code against the present accused petitioner, Subal Chandra Roy, alleging therein that the accused petitioner on 27th January, 1989 at about 10-30 a.m. caused accident to one Manotosh Das who was carrying a generator machine in his Thela and another Taleb Mia who was going with another Thela carrying different articles, due to rash and negligent driving of a bus on Torsa Bridge which was then driven by the aforesaid accused-petitioner. The accused-petitioner after trial was convicted by the learned Judicial Magistrate, 1st Class (Sadar), Cooch Behar. The accused-petitioner was sentenced to suffer R.I. for six months and also to pay fine of Rs. 3000/-, in default to suffer R. I. for two months for commission of offence under section 304A I.P.C. 2. Against the aforesaid order of conviction and sentence an appeal was preferred being Criminal Appeal No. 37 of 1991 and the said appeal was disposed of by the learned Sessions Judge maintaining the conviction but on the ground of sentence the case was sent back to the court below for complying with provision of section 360 Cr. P.C. or invoking the provision of Probation of Offenders Act, 1958. Again the learned Magistrate, by his impugned order dated 27.12.93 has rejected the prayer of the accused-petitioner holding, inter alia, that benefits of Probation of Offenders Act, 1958 or provision of section 360 Cr. P. C. could not be granted to the accused-petitioner. P.C. or invoking the provision of Probation of Offenders Act, 1958. Again the learned Magistrate, by his impugned order dated 27.12.93 has rejected the prayer of the accused-petitioner holding, inter alia, that benefits of Probation of Offenders Act, 1958 or provision of section 360 Cr. P. C. could not be granted to the accused-petitioner. Against that order, the accused petitioner again preferred an appeal being Criminal Appeal No.4 of 1994 which was disposed of by the learned Sessions Judge, Cooch Behar on 10.1.1995 holding, inter alia, that the accused-appellant was not entitled to the benefit of probation. Being aggrieved by and dissatisfied with the aforesaid order passed by the learned Sessions Judge in the aforesaid Criminal Appeal, the present revisional application has been directed alleging that while considering the matter regarding grant of benefit either under section 360 Cr. P.C. or under the Probation of Offenders Act, 1958, both the courts below have placed their reliance only on the offence itself and both the courts below have failed to consider the other aspects incidentally attached to such offence for grant of benefit either under the provision of Probation of Offenders Act or under section 360 of Cr. P.C. and as such, there has been miscarriage of justice for which interference by this court is necessary. Hence, this prayer. 3. I have heard the parties at length over this issue. I have also gone through the judgements of courts below with meticulous care. From the perusal of the judgement of the learned Sessions Judge, it appears that the learned Sessions Judge has placed his reliance on a decision of Guwahati High Court reported in 1990 Cri. L. J. 2500 in Kantilal Shiva Bhai Thakkar vs. State of Gujarat and at the same time observed that situation available in the case, reported in 1993 Cri. L. J. 119, cited by the petitioner/appellant was somewhat different from the present case. I have gone through the aforesaid two judgements together with the judgement of the Apex Court as reported in A.I.R. 1983 SC 291 in the case of Keshau Sitaram Sali vs. State of Maharashtra as also another decision reported in A.I.R. 1979 SC 964 in the case of Bishun Deo Show vs. State of West Bengal. I have gone through the aforesaid two judgements together with the judgement of the Apex Court as reported in A.I.R. 1983 SC 291 in the case of Keshau Sitaram Sali vs. State of Maharashtra as also another decision reported in A.I.R. 1979 SC 964 in the case of Bishun Deo Show vs. State of West Bengal. In the decision reported in A.I.R. 1983 SC 291 (supra), it has been held by the Apex Court that the accused of that case was an employee of the Railway who was alleged to have abetted commission of theft of coal worth of Rs. 8 from Railway goods wagon and the said accused was taken back to duty after his conviction by the High Court and in view of his character and antecedents, it was observed by the Apex Court that the benefit of probation could have been given by the High Court and accordingly, the sentence imposed upon such accused was set aside by the Apex Court and the case was remitted to the trial court to pass an appropriate order. In the decision reported in A.I.R. 1979 SC 964 (supra), it was further held by the Apex Court that personality of the offender as revealed by his age, character and antecedents and other circumstances and the tractability of the offender to reform must necessarily play the most prominent role in determining the sentence to be awarded. 4. Here, in the present matter in hand, I find from the materials on record that the accused-petitioner although was convicted under sections 279/304A of I.P.C. yet, he was sentenced to suffer R. I. for six months as also to pay a fine of Rs. 3000/- only, i.d., to suffer R. I. for two months for the offence under section 304A of the Indian Penal Code and no separate sentence was passed for the offence under section 279 of Indian Penal Code. But at the same time, considering the fact that due care and caution was not taken by the vehicle before entering the said Bridge, the learned trial Judge has refused to extend the benefit either under section 360 Cr. P.C. or under section 4 of the Probation of Offenders Act, 1958. Similar view was also taken by the learned Appellate Court while disposing of the aforesaid matter in Criminal Appeal No. 4/94. 5. P.C. or under section 4 of the Probation of Offenders Act, 1958. Similar view was also taken by the learned Appellate Court while disposing of the aforesaid matter in Criminal Appeal No. 4/94. 5. But hearing the present matter in the light of the above decisions of the Supreme Court and specially taking into consideration of the fact that even after conviction, the aforesaid accused-appellant was taken back by his employer for performing normal duties and in a situation like this and having regard to the special circumstances of this case and the character and antecedents of the accused petitioner, who is reported to be the first offender, I am of the clear opinion that the courts below should have extended the benefit of either under section 360 Cr. P.C. or under sections 3 and 4 of the Probation of Offenders Act to the present accused-petitioner instead of imposing ready punishment by sentencing him to suffer R. I. for six months and to pay a fine. In doing so, both the courts below have failed to exercise proper jurisdiction that was vested on them which leads me to interfere by exercising the inherent power of this court by sitting in this revisional forum. Accordingly, the impugned order passed by the learned courts below regarding imposing sentence upon the accused appellant at the first instance stands set aside and the present case be remitted back to the trial court, i.e. the court of the learned Judicial Magistrate, 1st Class, Cooch Behar to pass an order upon consideration of the fact and to see further whether this accused petitioner should be dealt with either under section 360 Cr. P.C. or under sections 3 and 4 of the Probation of Offenders Act. 6. Accordingly, the case is remitted to the learned trial court to pass an appropriate order under either of the two provisions referred to above. I also direct the accused-petitioner to appear before the concerned trial court within a month from the date of this order to enable the trial court to pass appropriate order, as directed above. In view of the above, the present revisional application is allowed. Copy of this order be sent down to the learned court below for information and necessary compliance together with the trial court records. Xerox certified copy of this order, if applied for, be made available to the petitioner within 10 days hereof. In view of the above, the present revisional application is allowed. Copy of this order be sent down to the learned court below for information and necessary compliance together with the trial court records. Xerox certified copy of this order, if applied for, be made available to the petitioner within 10 days hereof. Revisional application allowed.